C v NEW ZEALAND POLICE [2021] NZHC 3560

C v NEW ZEALAND POLICE [2021] NZHC 3560 [20 December 2021]ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYINGPARTICULARS OF THE PARTIES AND THE CHILD(REN).IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-55[2021] NZHC 3560BETWEEN CApplicantAND NEW ZEALAND POLICERespondentHearing: 1 December 2021Counsel: C J Tennet for the ApplicantH R Hancock for the RespondentJudgment: 20 December 2021JUDGMENT OF GWYN J[1] Ms C, the applicant, was convicted on 8 March 1996 in the Wellington DistrictCourt, after pleading guilty to a charge of being a party to unlawful sexual intercoursewith a girl aged 12-16 years.1 Ms C was sentenced on 18 April 1996 to a six-monthsuspended prison sentence and six months supervision. She now applies for anextension of time within which to appeal her conviction and/or appeal againstsentence, seeking a discharge without conviction. Ms C also seeks permanent namesuppression.1 Crimes Act 1961, s 134(1) and s 66(1).Background facts[2] The summary of facts records that at the relevant times Ms C worked part timeat a retail store where her then partner, Mr H, worked as a manager. The victim (A)also worked full time at the store. A was aged 15 at the time.[3] The summary of facts records:On Saturday 10 February 1996, the victim was invited to a party with bothdefendants at a local hall.The victim, not accustomed to drinking, had several bottles of beer, andbecame quite intoxicated.After the party, at approximately 11.30 pm, the defendants took the victimback to their flat.[H] undressed the victim, and then undressed the defendant [C]. [H]undressed himself and all three then got into bed.[H] then got the victim to commit indecencies upon [C], while he watched.[C] then instructed the victim to have intercourse with [H].[H] then applied KY jelly to his penis, and had sexual intercourse with thevictim, while [C] fondled the victim's breasts. [H] did not use a condom.Some time later, the victim went to the bathroom, and realised that the roomwas spinning, due to her level of intoxication.She returned to bed, and [H] again had intercourse with her.All three fell asleep, and were woken at approximately 5.30 am, by a friend ofthe victim's who was looking for her.Both defendant were spoken to by Police some days later. They admitted thefact as outlined.In explanation, they stated that the victim was a willing party throughout theentire night, and that nothing would have happened had she not wanted it to.[4] In her statement to police, A said that she had met both Ms C and Mr H soonafter she started working at the store. She said Ms C had offered her the chance to betheir nanny and to live with her and Mr H and offered to pay for her to go to nannyschool. Ms C took her shopping on one occasion and paid for her nose to be pierced.A few days later she bought A some clothes. Over the next couple of weeks A went toMs C and Mr H's house three or four times. On one of those occasions they showedher pornography. They asked her to move in with them and have a relationship withthem.[5] Ms C is now 41 years old. She left Mr H in 1999. She had two daughters withMr H who were aged two and one at the time of their separation.[6] Ms C was in a subsequent relationship for 20 years (she and her partner weremarried for part of that time), and she has two children from that relationship, both ofwhom have special needs. From 2004 to 2016, Ms C was an early childhood teacher,employed by a national provider of in-home childcare and early childhood educationservices. Ms C had told her employer about her criminal record when she commencedemployment with them, but after the Vulnerable Children Act 20142 came into effecther employers terminated her employment, in June 2016, on the basis that her previousconviction was for a "specified offence" in Schedule 2 of the Act. The Act providesthat a core worker convicted of a specified offence cannot be employed or engagedunless that person applies for an exemption. Ms C's employer advised her that, whileshe was entitled to go through the exemption process, they would not re-register hergiven their internal policies.[7] Subsequently Ms C has applied for more than 40 jobs in other areas but hasbeen unsuccessful.[8] Ms C says she did not seek to appeal her conviction earlier for a number ofreasons: after she left the relationship with Mr H in 1999 she was fighting for custodyof her two daughters. Her evidence is that she was involved in the Family Courtprocess for nine years, from 1999 to 2008. In 2004, after the birth of her daughter S,Ms C was diagnosed with depression, PTSD, anxiety disorder and OCD. Ms C'smother, who had taken her in as a foster child in 2014, died in 2008.[9] Ms C's earlier history is also relevant. She lived with her birth mother for thefirst five years of her life. Her mother was physically and mentally abusive, Ms C wasraped by her brother. She was made a ward of the state, until she was 21 years old,and describes further sexual abuse while she was in foster care. Subsequently Ms C2 Now the Children's Act 2014.was accepted by the ACC Sensitive Claim Unit as having an impairment (mentalinjury) as a result of that abuse. A 2005 ACC report sets out an impairment assessment.[10] Ms C also says that she had tried to put the conviction behind her, thinkingthat the provisions of the Clean Slate Act3 applied to her.[11] Two specific things triggered Ms C to take steps to appeal her conviction. Thefirst was when she was refused a visa to travel to Australia in about 2009. The secondwas what occurred with her employment.[12] It is in those circumstances that Ms C has now applied for an extension of timeto bring her appeal, as the appeal is 25 years' out of time.Applicable law and procedure[13] Ms C's conviction was entered before enactment of the Criminal ProcedureAct 2011. In accordance with s 397(2) of that Act, Ms C's appeal must be heard anddetermined in accordance with the Summary Proceedings Act 1957, as if that Act wasstill in force.[14] Under s 115 of the Summary Proceedings Act, Ms C had a general right ofappeal to the High Court against her conviction and sentence. Under s 116 of that Act,any appeal had to be lodged within 28 days of the sentence[15] Under s 123 of the Summary Proceedings Act, the High Court could extend thetime for filing a notice of appeal. Section 388 of the Crimes Act 1961 is analogous tos 123 of the Summary Proceedings Act. The same considerations for extending timeto appeal apply.4 The key considerations are:(a) the length of and reasons for the delay;53 Criminal Records (Clean Slate) Act 2004.4 R v Knight [1998] 1 NZLR 583 (CA); R v Lee [2006] 3 NZLR 42 (CA); R v Slavich [2008] NZCA116.5 R v Slavich, above n 4, at [14]; Douglas v Police [2013] NZHC 2651 at [28], citing R v Lee, aboven 4, at [108]-[118].(b) the merits of the proposed appeal;6(c) whether the respondent has suffered any prejudice by the delay, beingprejudice of a kind other than what is inherent in the extension of timeitself;7 and(d) overall, whether it is in the interests of justice for leave to be granted.This involves balancing the wider interest of society in the finality ofdecisions, against the interests of the individual applicant in having theconviction reviewed.8[16] There is an additional hurdle here because Ms C pleaded guilty to the chargeagainst her. It is only in exceptional circumstances that an appeal against convictionwill be entertained following entry of a plea of guilty.9 The appellant must show thata miscarriage of justice will result if the conviction is not overturned. The Court ofAppeal in R v Le Page set out three broad situations where a miscarriage of justicewill be indicated:10The first is where the appellant did not appreciate the nature of, or did notintend to plead guilty to, a particular charge. These are situations where theplea is shown to be vitiated by genuine misunderstanding or mistake. Wherean accused is represented by counsel at the time the plea is entered, it may bedifficult indeed to establish a vitiating elementA further category is where on the admitted facts the appellant could not inlaw have been convicted of the offence charged. Examples are where a chargerequired special leave and such was not obtained, a charge was out of time orwhere as a matter of law the facts are insufficient to establish an essentialingredient of the offenceThe third category is where is can be shown that the plea was induced by aruling which embodied a wrong decision on a question of law[17] Leave will not be given if the guilty plea was entered by a competent defendantwho had no viable defence.116 R v Slavich, above n 4, at [14].7 Police v Hill (1990) 6 CRNZ 280 at 281; R v Knight, above n 4, at 589.8 R v Knight, above n 4, at 587.9 R v Le Page [2005] 2 NZLR 845 (CA) at [16].10 At [17]-[19].11 R v Ericson [2007] NZCA 18.[18] If time is extended, the substantive appeal would proceed under ss 119 and 121of the Summary Proceedings Act. Under s 119 general appeals were to be held by wayof rehearing. The Court had full discretionary powers to hear and receive furtherevidence, if that further evidence could not in the circumstances reasonably have beenadduced at the hearing.12 Section 121 empowered the High Court to hear anddetermine every general appeal and to make such order in relation to it as the Courtthought fit. On an appeal against conviction, the Court could:13(a) Confirm the conviction; or(b) Set it aside; or(c) Amend it and, if the Court thought fit, quash the sentence imposed andeither impose any sentence the convicting court could have imposed, ordeal with the offender in any other way the convicting court could havedone, which includes to discharge without conviction.[19] At the time of Ms C's conviction, s 19 of the Criminal Justice Act 1985provided the power to discharge without conviction:19 Discharge without conviction(1) Where a person who is charged with an offence is found guilty orpleads guilty, the court may discharge the offender without convictionunless by any enactment applicable to the offence a minimum penaltyis expressly provided for.(2) A discharge under this section shall be deemed to be an acquittal.[20] In Police v Roberts, the Court of Appeal explained that the centralconsideration under s 19 was whether the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence:14What the Court must do is "to balance all the relevant public interestconsiderations as they apply in the particular case". The public interest mayrequire a conviction to be entered because of the nature of the offence and the12 Summary Proceedings Act 1957, s 119(3).13 Section 121(2).14 Police v Roberts [1991] 1 NZLR 205 at 210.particular occupation or proposed occupation of the offender. On the otherhand, the offence may be so trivial that public interest does not call for aconviction to be recorded [In] the final analysis, after considering all therelevant circumstances, it is a proper exercise of the Court's discretion "if thedirect and indirect consequences of the conviction are, in the Court'sjudgment, out of all proportion to the gravity of the offence." That must bethe overriding consideration. The words, "out of all proportion" point to anextreme situation which speaks for itself.[21] The Court must consider the gravity of the offending and the consequences ofa conviction for the individual offender. Then it must determine whether thoseconsequences are out of all proportion to the gravity of the offending. Finally, theCourt must decide whether to exercise its discretion to grant a discharge.[22] An appeal against a refusal to discharge without conviction is characterised asan appeal against both conviction and sentence. As the Court of Appeal said inJackson v R,15 "the essence of the challenge is to the entry of a conviction; that is thenature of the decision against which the appeal is brought. The setting aside of theconviction is both the necessary prerequisite to and objective of the appeal."Approach on appeal[23] Because Ms C's application is framed in the alternative as an appeal againstconviction or sentence, I assess the merits of the time extension application, as JagoseJ did in McNeil,16 through the lens of whether, when Ms C was convicted andsentenced in 1996, she ought to have been granted a discharge without conviction bythe District Court Judge.17The application for extension of time[24] The Police oppose the application to extend time for the appeal. I consider thecompeting public interest considerations below.15 Jackson v R [2016] NZCA 627 at [8]. See also eg Lawrence v Police [2016] NZHC 148 at [7].16 McNeil v Police [2018] NZHC 1685 at [16].17 I note that in McNeil the parties had agreed that the leave application and the substantive appealbe dealt with at the same time. That is not the case here.Length of and reasons for delay[25] The principal reason Ms C gives for the delay is that it was not until heremployment was terminated in 2016, as a result of the conviction, and her subsequentinability to obtain other employment, that the impact of the conviction becameapparent. Ms C also gives evidence that she is precluded from study, giving theexample of an enquiry about doing an accounting course with the Careers Academy, aprivate training establishment, so that she could do accounting bookkeeping fromhome. She says she was not able to do so because of her conviction, although there isno supporting evidence before the Court on this point.[26] Ms C says that other difficult issues in her life preceding that point (outlined at[8] above) meant that she was not focussed on seeking leave to appeal.[27] Ms C's evidence is that there were a number of reasons for the delay in actuallyimplementing her decision to seek leave to appeal. For example, the Police file wasnot received until 2 September 2019. Ms C filed her first affidavit on16 September 2019. In addition, it appears that Ms C was initially advised to file herapplication for leave in the District Court and was subsequently surprised when theDistrict Court Judge (Judge Hastings) found that it could not be heard by the DistrictCourt. The first COVID-19 lockdown then ensued.[28] Ms C's situation was complicated by the fact that during that lockdown, herrelationship with her husband deteriorated and she was under considerable stress as aresult. By the time the counsel she had ultimately instructed was free from trialcommitments to proceed with the matter, Ms C's personal circumstances hadworsened. She refers to threatening and psychological and physical abuse by herhusband which required her to get a Protection Order. That situation gave rise toanother issue which is relevant to the effect of the conviction. On the breakdown ofher marriage, Ms C was fearful of her safety and wanted to go into emergency housingbut she was advised by the Porirua Women's Refuge / Whare Manaaki Inc, that shecould not be a resident there because of her conviction for sexual offending with achild. Ms C was also advised by WINZ that her conviction meant that she could notbe placed in emergency housing with families and children.[29] Mr Hancock, for the Police, notes that the length of the delay is unprecedented.He refers specifically to the cases of Dijali v R,18 Brown v Police,19 and McNeil vPolice,20 which involved 21, 20 and 29 year delays, respectively. Of those three cases,leave was granted only in McNeil.[30] Mr Hancock submits that the termination of Ms C's employment in 2016because of the conviction is insufficient explanation for the delay of 25 years. Hernotice of appeal was not filed until 23 December 2019, although she first instructedcounsel in 2016. The respondent says that the fact that such a conviction couldpotentially have consequences on employment must have been readily appreciableprior to the commencement of the Vulnerable Children Act 2014, in the same way thatthe consequences of a conviction for possession of cannabis were readily appreciablein McNeil v Police.21[31] Mr Hancock notes that the termination letter of 13 June 2016 from Ms C'semployer suggests that Ms C had known since 2012 that, because of her conviction,her employer would not directly refer any clients to her and that if her services wererequested, Ms C must disclose her conviction to them within 24 hours. Theimplication of that submission is that Ms C must have appreciated the significance ofher conviction at least at that point.[32] I have found it useful to consider the period of delay in two phases – pre-andpost-Ms C's dismissal on 13 June 2016, which was consequent on enactment of theChildren's Act 2014.[33] The earlier period, from the date of conviction in March 1996 until June 2016is, on its face, problematic.[34] I accept that Ms C must have had some understanding at the time of herconviction and sentence of the potential consequences of a conviction for thisoffending. However, this case is somewhat different from McNeil, where Mr McNeil18 Dijali v R [2017] NZCA 515.19 Brown v Police [2018] NZHC 1083.20 McNeil v Police above n 16.21 McNeil v Police, above n 16.was convicted for possession of a small amount of cannabis, and sought leave to appealhis conviction 29 years out of time. In that case Jagose J did grant leave, primarilybecause there was little or no prejudice to the respondent, but as to delay, said: 22The fact the conviction was entered at a time where the consequences onMr McNeil would not have been as significant, or the exact impact of thoseconsequences was ambiguous, is not a compelling or understandable reasonfor the delay. The potential consequences themselves on Mr McNeil forgeneral employment and travel prospects as well as the mark of a convictionat the age of 17 were, if not notorious, then at least known.[35] Here, Ms C was 21 years old at the time of the offending. She had been in arelationship with Mr H since she was 16 and she was three months' pregnant. Shesays that Mr H was generally controlling and aggressive.23 At that time she workedpart-time in a retail store. The 2005 ACC report records that Ms C had trained as adental assistant, but had a history of lasting for a short while in jobs before leaving,because work was "too stressful". Ms C's evidence is that she did not begin workingas an early childhood teacher until 2004. That is some eight years after her conviction.I infer that at the time Ms C pleaded guilty to the charge against her she did notanticipate that in the future she would be working in this area. Nor could she haveanticipated the enactment of the Vulnerable Children Act 2014 and its impact on her.[36] I also note that Ms C and Mr H were originally charged with sexual violationbut the charge was amended to unlawful sexual intercourse with a girl 12-16. Ms Csaid she never saw the Summary of Facts. She describes the decision to plead guiltyas a "package deal". Her evidence is that the lawyer who acted for her and Mr H toldthem the result was a very good one. She says she was told by both Mr H and theirlawyer to sign a letter to the Police thanking them for the way they dealt with the case.[37] In those circumstances, and having been unaware of, or able to ameliorate, theeffects of the conviction for a substantial period, it is not surprising that it was not untilthe conviction had a direct impact on her ability to work in her chosen field, with theeconomic and personal consequences that flowed from that, that Ms C appreciated thesignificance of the conviction and sought leave to appeal.22 At [23].23 Ms C's evidence is that she was subsequently raped by Mr H and she left the relationship shortlyafter.[38] I now consider the latter period, after Ms C's employment was terminated. Theletter of termination is dated 13 June 2016. She instructed a lawyer, Keith Jeffries,sometime in 2016. Mr Jefferies wrote to the Hon Peter Dunne, Member of Parliament,on 22 March 2016 in relation to Ms C's convictions. Nothing came of that.Subsequently, also in 2016, Ms C instructed her present counsel, Mr Tennet. ThePolice file was received on 2 September 2019; Ms C swore her first affidavit on 16September 2019 and filed a notice of appeal in the District Court on 23 December2019.[39] I am satisfied that the lapse of time from the termination of her employmentuntil Ms C's notice of appeal was filed is explicable. It is not due to any delay onMs C's part.Merits of the proposed appeal[40] The statement of facts says "the victim is a 15 year old girl". Later in thestatement of facts it states that both defendants "admitted the fact (sic) as outlined".The statement of facts does not include any more specific reference to indicate thateither Ms C or Mr H acknowledged they knew A was 15. The complainant's statementsaid "Everyone at work knows that I am 15." Ms C's evidence in this application isthat Mr H had told her that A was 18; she says "I thought she was a lot older – at least18." Ms C also says she was a reluctant participant in what happened with A, but wentalong with it in the context of what she says was a relationship where Mr H hadpreviously been violent and threatening to her, was preoccupied with pornography andconstantly pestering her for sex, despite her being pregnant.[41] Initially Mr H and Ms C were charged with rape. Subsequently the charge wasreduced to unlawful sexual intercourse with a girl aged 12-16 years. Ms C says thecharge was reduced after she recorded a telephone conversation with A in which Aadmitted "everything had been voluntary". Ms C provided that tape recording to theircounsel.[42] Ms C says that she felt pressured to plead guilty to the lesser charge on thebasis that if she pleaded not guilty and was subsequently found guilty her lawyer saidshe would likely go to prison and her (unborn) baby would go into care. Ms C saystheir lawyer treated them like a unit. Mr H did all the talking. The proposal to pleadguilty to the amended charge was put to her as a "package deal", to avoid Mr H goingto prison. Ms C says she had no separate legal advice; she was not advised about beinga party (or not) to the offending or whether she had a defence. There is nothing in thematerial before the Court to suggest that counsel advised of, or sought, a dischargewithout conviction for Ms C.[43] The evidence before me on this application includes a 14 March 1996 pre-sentence report for Mr H, which refers to a pre-sentence report for Ms C being beforethe Court, but that is not in the material before me. The pre-sentence report for Mr Hsays of Ms C "It is apparent that his de facto partner was a state ward from the ageof 18 months, that she had a troubled upbringing and that she was dependent on him,as she had no other family or close friends." The report also noted "[H] is a firstoffender who presents as an immature, anxious, self-centred individual with a stronginclination towards perceiving himself as a victim, in this matter."[44] The Crown refers to a contemporaneous news report which refers toPaul Surridge as counsel for Mr H, and later mentions "[C]'s lawyerJackie Anderson". The article suggests that Ms Anderson had taken instructions fromMs C. But Ms C says it was Mr Surridge who appeared on her behalf, both at theguilty plea and at sentencing. Mr Tennet has not been able to find out more aboutMs Anderson's role, but suggests she may have been someone from Mr Surridge'soffice.[45] As Jagose J said in McNeil v New Zealand Police,24 it is important to recognisethat the merits must be relatively strong such that there is a real likelihood that anappeal would succeed if time was extended.25[46] As I have noted, my assessment of the merits of the appeal turns on whetherMs C should properly have received a discharge without conviction at the time she24 McNeil v Police, above n 16, at [10].25 R v Slavich, above n 4, at [13]; Douglas v Police, above n 5, at [31]; citing Cleggs Limited vDepartment of Internal Affairs HC Auckland M1032/84, 5 September 1984.was convicted and sentenced. In terms of the assessment required under s 19 of theCriminal Justice Act 1985, I turn to the Police v Roberts factors:26(a) The nature of the offence and the gravity with which it is viewed byParliament;(b) The seriousness of the particular offending;(c) The circumstances of Ms C in terms of the effect on "[her] career, [her]pocket, [her] reputation and any civil disabilities consequential onconviction"; and(d) Any other relevant circumstances.[47] Ultimately, that requires an assessment as to whether the direct and indirectconsequences of a conviction are out of all proportion to the gravity of the offence.[48] There is no doubt that the offence, sexual conduct with a young person under16,27 is a serious one. It is liable to a maximum term of imprisonment of 10 years.However, there is a statutory defence.28 Ms C was charged as a party to the offence29and, on the basis of the summary of facts and A's statement, Ms C had a lesser role inwhat occurred. As I have noted, Ms C also says that she was a reluctant participantand she believed that A was a willing partner to what occurred and was at least 18years old.[49] It is not clear on the facts before me whether Ms C would have been able tomake out all three elements of the statutory defence to the charge under s 134A - thatis, that before the act concerned she had taken reasonable steps to find out whether Awas of or over the age of 16, and that at the time of the act she believed on reasonablegrounds that A was of or over 16, and that A consented.26 Police v Roberts, above n 14, at 210.27 Crimes Act 1961, s 134.28 Crimes Act 1961, s 134A.29 Crimes Act, s 66(1).[50] But in any event, the evidence before me suggests that Mr H and Ms C'sinterests were different and that, had they been separately represented, Ms C mighthave been able to obtain a discharge without conviction, having regard to the followingfactors:(a) Ms C's own difficult background;(b) the nature of her relationship with Mr H;(c) her pregnancy;(d) her lesser, and reluctant, involvement in the offending;(e) her belief that A was more than 18 years old;(f) A's subsequent admission that she was a voluntary participant; and(g) the lack of any previous convictions and the potential impact on Ms C'sfuture employment.[51] I am satisfied there is sufficient merit in the appeal, at least for the purposes ofextending time.Prejudice to the respondent[52] Consideration of the difficulties must be limited to those which are due to thedelay. Difficulties that would have been present, even had the appeal been timelyshould not be taken into account.30[53] Mr Hancock submits there will be significant impacts for the Crown, andpotentially for A, if a retrial is ordered. This is not, he says, a straightforward case toretry, for a number of reasons including that it appears from Ms C's evidence that therewill be reliability and credibility issues. A number of specific factual matters will bein dispute including:30 R v Lee, above n 4, at [118].(a) Ms C's knowledge of A's age;(b) The nature and degree of contact between Ms C and A both prior to andafter the offending;(c) Whether Ms C was or was not a reluctant participant in the offending.[54] Mr Hancock says the Police have not specifically explored the likelihood of aretrial, but the Court cannot assume a retrial could be likely.[55] In his submission, similar difficulties would arise on a sentencing appeal, anda disputed facts hearing would be required,31 as Ms C necessarily disputes the factualbasis on which the appeal against sentence might proceed.[56] Mr Hancock acknowledges that Ms C's application is at its strongest if shewere to proceed on an application for discharge without conviction on the facts aspleaded to at the time.[57] Mr Tennet says the difficulties of a further trial are not insurmountable andwould be of less significance on a sentence appeal only, where there is less likelihoodof A having to give evidence.[58] In this case there would undoubtedly be difficulties with a retrial. At this stage,A's availability and willingness to give evidence is unknown. It is not clear whatimpact a retrial for Ms C might have on Mr H.[59] On the other hand, a sentence appeal could proceed on a more confined basisthan an appeal against conviction and any factual disputes more readily dealt with.Interests of justice[60] As the Court of Appeal said in R v Knight:3231 Sentencing Act 2002, s 24.32 R v Knight, above n 4, at 587, cited with approval by the Court of Appeal in R v Slavich, above n 4,at [8].The touchstone is the interests of justice in the particular case. The discretionmust be exercised in accordance with the policy underlying the legislativeprovisions. The feature which provides the reason for the time-limit forappealing set by s 338(1) is the interests of society in the final determinationof litigation. That necessarily carries through as a powerful consideration indetermining whether leave should be granted under s 338(2) to appeal out oftime. The overall interests of justice in a particular case may call for balancingthe wider interest of society in the finality of decisions against the individualapplicant in having the conviction reviewed.[61] I accept that the wider interests of society and the finality of decisions doesweigh against Ms C's interest in having her conviction and sentence reviewed by thisCourt so many years out of time. "Appeal periods are set for a purpose: to ensurefinality in decision-making and the orderly administration of justice." 33[62] As Jagose J observed in McNeil:34It would place serious strain on the court system if people convicted ofoffences nearly 30 years ago were able to relitigate their convictions whenfaced with specific obstacles arising from that conviction."[63] On the other hand, it is arguable that the disposition of the proceedings resultedin an unjust outcome for Ms C.[64] It is also plain that the conviction has had significant consequences for Ms Cin terms of her ability to obtain and retain paid employment in the area in which shehas experience and, in times of crisis, to access appropriate emergency support. If shewere ultimately successful in her appeal against conviction or in obtaining a dischargewithout conviction (which is deemed to be an acquittal)35 that would remove animpediment to her working as an early childhood teacher and be of substantial benefitto her, particularly given her need to be able to support her children.[65] In C v R the Court of Appeal did not consider that the effect of s 28 of theChildren's Act was a persuasive ground for the grant of a discharge withoutconviction.36 The Court discussed s 35 of that Act which provides a process to seekan exemption (which may be qualified or contain conditions) from the chief executive33 Brown v Police, above n 19, at [30].34 McNeil v Police, above n 16, at [32].35 Sentencing Act 2002, s 106(2); Criminal Justice Act 1985, s 19(2).36 C v R [2020] NZCA 443 at [25].of any key agency.37 C had applied for an exemption and the Chief Executive ofOranga Tamariki had made a preliminary decision to decline her application, butprovided C with an opportunity to provide further information targeted on specificareas of concern . The Court of Appeal said that, in the circumstances of that case, theability to seek a statutory exemption provided "sufficient scope to look beyond themere fact of a conviction and engage in a robust examination of C's offending andlater rehabilitative efforts."38[66] The circumstances of that case were somewhat different. In Ms C's case herformer employer, a national provider of in-home childcare and early childhoodeducation services, who was aware of Ms C's conviction from the outset, on theenactment of the Vulnerable Children Act, advised her that "While you are entitled togo through this exemption process, we would not re-register you given our internalpolicies on the matter."[67] That in itself differentiates this case from C v R and be a persuasive ground fora discharge without conviction. Added to that is Ms C's inability to access emergencyhousing or live-in Women's Refuge services at a time of critical need. In my view,that combination of effects, all of which would have been largely unforeseen orforeseeable, means that there is clear practical utility to the remedy sought and Ms Cmay ultimately be able to make out the test for a discharge without conviction.[68] Overall, I agree with Mr Hancock that the prejudice to the respondent(including likely prejudice to A) means the interests of justice test is not made out inrelation to Ms C's proposed appeal against conviction. However, I am satisfied that itis in the interests of justice to grant Ms C an extension of time to appeal her sentence.It may well be that, as counsel for the Police suggests, that will be a less difficultexercise (though still opposed by Police) if Ms C were to proceed with that appeal onthe basis of the facts as pleaded. That will ultimately be a question for Ms C and her37 Children's Act 2014, s 35: "key agency" is defined as the Ministry of Social Development, theMinistry of Health, the Ministry of Education, the Ministry of Justice, the department responsiblefor the administration to the Oranga Tamariki Act 1989.38 The Supreme Court subsequently declined C's application for an extension of time for leave toappeal: C v R [2021] NZSC 177.counsel. I am also satisfied that exceptional circumstances exist, in terms of the firstcategory set out in R v Le Page.39Name suppression[69] Ms C has interim name suppression until resolution of this application.40 Igrant continued interim name suppression pending the final outcome of her appealagainst sentence.Result[70] Ms C's application for extension of time to appeal her sentence is allowed.Gwyn JSolicitors:Mr O'Connor, WellingtonCrown Solicitor, Wellington39 R v Le Page, above n 9.40 Minute of Simon France J, 6 September 2021; confirmed by Gwyn J at the preliminary hearingon 1 December 2021.